Justice Kennedy Has His Cake and Eats It Too in Gay Wedding Case
By Cristian Farias
@cristianafarias
June 4, 2018
4:02 pm
Way ahead of schedule, the Supreme Court today issued its highly anticipated ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, colloquially and reductively known as the gay-wedding-cake case. More accurately, the dispute is a complex clash of competing constitutional values, some as old and cherished as the republic: freedom of religion and expression squared off against the dignity of a minority group (i.e., gays and lesbians), who in recent years not only won the constitutional right to marry, but the statutory right to be served equally under long-standing public-accommodations laws, which many states have extended to protect them in the public square.
I say the Supreme Court acted ahead of schedule because virtually no one was expecting the justices, let alone the unofficially designated chief decider in the case, Justice Anthony Kennedy, to make up their minds in this matter without waiting until the very last day of the term in late June, as they often do in hotly contested cases. When the high court heard Masterpiece back in December, there was little doubt that this would be one of those nail-bitingly close rulings, with Kennedy wavering and his colleagues prodding him to stop agonizing and make up his mind already and break a 4–4 tie.
And make up his mind he did, but not in the way you might expect. Somehow, a grand total of seven justices — including the more liberal Justice Stephen Breyer and Justice Elena Kagan — agreed that Jack Phillips, the religious baker at the center of Masterpiece, should win the case. And that the gay couple that was turned away from Phillips’s bakery, Charlie Craig and David Mullins, should lose. And yet this simplistic, win-lose dynamic — which simplistic minds are already grossly abusing for partisan ends — obscures what Kennedy and his co-signers really did here: rule very narrowly in a case that could’ve created a major free-speech or religious exception to long-settled anti-discrimination principles that have been with us since the civil-rights era.
The Supreme Court did none of that. And neither did it even rule on a point of law that Phillips really wanted the justices to adopt: that his cake “artistry” is protected by the First Amendment’s free-speech clause. “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech,” Kennedy muses rather aimlessly, as his opinion doesn’t even try to engage that difficulty. The court really wrestled during oral arguments with which wedding-related products and services count as speech and which ones don’t — Is cake protected expression but a bride’s makeup and hairstyling aren’t? And what about photography, lighting, and the like? — but here, rather than entertaining an impossible, line-drawing exercise implicating thousands of counterfactuals, Kennedy took the path of least resistance and punted on the complexities of the dispute.
Instead, relegating everything to “some future controversy involving facts similar to these,” his majority went on to hold that the Colorado civil-rights commission that sanctioned Phillips for refusing to sell a wedding cake to Craig and Mullins acted unconstitutionally because it wasn’t religiously neutral — that is, the agency exhibited an apparent bias toward the baker’s religious objection to doing business with a gay couple. “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote. “Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
more
https://nymag.com/daily/intelligencer/2018/06/supreme-court-has-its-cake-eats-it-too-in-gay-wedding-case.html
= new reply since forum marked as read
is that, in future situations, people caught discriminating against LGBT persons in protected areas by way of citing their religious beliefs, could try to wiggle out of complaints against them by spuriously accusing government officials of being "hostile" to their religious beliefs and it's not entirely clear to me how an official handling such a complaint could prove they weren't being "hostile". Of course, to me, the religious objections of business owners to serving LGBT persons should be immaterial in what is supposed to be our secular-based society, but we have too many politicians whom have opened the door to religious beliefs, particularly Christianity (or some interpretations thereof) having outsized influence on public policies despite having (or supposed to be having) a defined "wall" between Church and State. Religion in our society is, paradoxically, much better protected than LGBT persons are and, ironically, IS an actual "choice" as opposed to being LGBT, which isn't.
